Gearing Up for 2015 DMCA Battle

Now it’s time to see how it will go as we advocate for fair use for digital and media literacy education – again.

On May 27, 2015, I’m off to Washington DC to meet with the U.S. Copyright Office to advocate for the legal right of teachers and students, in and out of schools, to “rip” DVDs for fair use. When Congress wrote the Digital Millennium Copyright Act (DMCA), they made it a crime to unlock the special software that locks up a DVD and prevents it from being copied. But because this law may interfere with the 1976 Copyright Act, the Librarian of Congress is authorized to make special exemptions, legally permitting some circumvention. In 2012, we were successful in receiving an exemption for K-12 teachers to circumvent encryption for media literacy. Specifically, the law permits circumvention of motion pictures on DVDs or distributed by online services, for purposes of criticism or comment in noncommercial videos, documentary films, nonfiction multimedia ebooks offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators.

But this work is important because the use of copyrighted materials fordigital and media literacy education requires a robust interpretation of fair use. This year, we are requesting to maintain the exemption for K-12 teachers and to expand it to include elementary and secondary students. We are also requesting an exemption for educators and learners of all ages who offer digital and media literacy education in libraries, museums and non-profit organizations. I am delighted to have the support of the American Library Association, the National Association for Media Literacy Education, PhillyCAM, Media Literacy Now, and The LAMP. I’ve been deeply inspired by the courageous work of Professor Peter DeCherney, who started this process back in 2006 and who continues to press for the expansion of rights for the higher education sector. And of course to Pat Aufderheide and Peter Jaszi whose groundbreaking, brilliant work captured my imagination and inspired me. Thank you all! I invite readers to sign a petition to lend your support to our work by clicking here!

We request an exemption that enables educators and students in grades kindergarten to twelfth grade — and for educators and learners who offer programs in libraries, museums and non-profit organizations — to use artifacts of their cultural heritage – classic and contemporary film and other contemporary digital media – for a range of digital and media literacy education practices that activate important skills and competencies, including the ability to access, analyze, evaluate, create and share messages in a wide variety of forms.

The rights holders do not oppose renewal of the existing exemption for elementary and secondary school instructors. Rather, they oppose only our proposed expansion of the exemption to include K-12 students and learners and educators in libraries, museums and non-profits. Here are some of our arguments rebutting the critics — about why the exemption needs to be expanded:

1. Opponents do not acknowledge that educational fair use is evolving to be increasingly sensitive to the situation and context of the learning environment. Opponents argue that our request is too broad and they recommend a definition that limits use to short clip compilations for film analysis, comment and criticism. But this definition is far too narrow; an exemption written to include only these practices would likely have a harmful effect on education, increasing confusion and reducing innovation among both educators and learners. Teaching and learning is a highly variable practice; situational variation is necessary for education to be responsive to the specific contexts of K-12 education. More important, because digital media is changing so rapidly, a robust spirit of experimentation by educators and students is required in order to discover the educational value of these new tools and technologies. With 50 million children and teens in American schools, and more than 3 million teachers, the range of instructional practices and strategies used by educators will inevitably be broad. It is in the public interest that educators be encouraged to be innovative in using digital media in ways that advance student learning. A too narrowly-written exemption will discourage the kinds of educational innovation that are desirable and beneficial to learners, and, ultimately to society.

There is no good reason to create separate rules for digital media in different formats. Opponents use a divide-and-conquer strategy by elaborately distinguishing between media content in different formats and for use with different devices. They act as if DVD and Blu-Ray were completely different animals. The intent and spirit of the copyright law, its flexibility and responsiveness to changes in media, education and technology, does not warrant the creation of separate rules for different types of digital media. Elaborate new rules that create different exemptions for DVD, Blu-Ray and streaming media have the potential to create more confusion by creating an elaborate category system that treats media in digital formats differently. Such a rule does not reflect the spirit of copyright law and would certainly discourage the innovative educational use of digital media in elementary and secondary schools. Digital media is constantly evolving. While in 2015, DVDs dominate the marketplace, this may not be true in 2017. For these reasons, this exemption has been requested for audiovisual material made available in all formats, including DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.

Student creative expression is fully subject to the legal protection of copyright and fair use. Opponents’ concern about the breadth of our exemption is unwarranted. In particular, they are concerned that student-created media might not constitute a fair use. Student creative expression is fully entitled to fair use protection, as the copyright law and the doctrine of fair use is not limited in its application to only to people over the age of 18. Right now, the DMCA has created a chicken-egg problem for educators: Learners need to access encrypted digital content in order to manipulate it to create new work that is transformative; yet, without the ability to legally access the work, they cannot create new works. Unless students can access encrypted digital content, they cannot engage in the kinds of manipulation and creative work that are needed in order to make transformative works.

Consider the work of Jeannine Cook, the lead educator for the Media and Technology Program at YESPHILLY, a non-profit organization that helps out-of-school African American youth ages 16 – 21 get their GED. Her students have had negative experiences in traditional schools and can be resistant to traditional practices of teaching and learning, so she finds creative ways to engage students with media in ways that stimulate intellectual curiosity. In one activity she uses where learners use digital media for “I am…” poetry videos, she knows that learners may wish to incorporate clips from culturally-relevant contemporary films like Unbroken and Selma, two of many films which are only available on DVD and Blu-Ray. But these clips are legally unavailable to her learners; they cannot re-purpose short excerpts to create a new, transformative work. If only her young adult learners were students at the nearby University of Pennsylvania, enrolled in a film class, then they would be entitled to the DMCA exemption and could circumvent encryption using these films to create their video poetry assignment. Sadly, under the current law and through the accident of being born poor and African-American, these learners are not entitled to use the copyrighted content of their culture in transformative ways for self-expression and learning. It just doesn’t seem right.

Opponents have narrowly formulated ideas about length and brevity of copyrighted content that do not reflect the spirit of copyright law. In particular, courts have established that educators should have the ability to determine the amount and length of work necessary to accomplish a particular educational purpose. In Cambridge Univ. Press v. Patton,[7] the U.S. Court of Appeals for the 11th Circuit found that professors’ sharing of excerpts from copyrighted works with students in their courses “is of the nonprofit educational nature that Congress intended the fair use defense to allow under certain circumstances.”[8] Hard numerical limits of the appropriate amount of work used – in particular the idea that works must be “short” or “brief” — were recognized in this case to be legally inappropriate. Instead, the court explained that lawful, noninfringing uses must simply be well-aligned and proportional to the instructor’s particular instructional objectives. One of the reasons why elementary and secondary educators and students need an exemption to circumvent digital content in all its forms comes from the strong alignment between the pedagogy of digital and media literacy and the concept of transformative use. Students and teachers both need to have access to digital content in order to make transformative use of copyrighted content for learning purposes. Transformative uses “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”[9]

Opponents understate the importance of image quality for teaching and learning. They use a legal argument to claim that fair use does not require the use to be technologically convenient. But in many schools and for many learners, access to high quality images is needed in order for a lesson to accomplish its pedagogical goals. Image quality increases viewers’ sense of psychological involvement with media. For example, when we are teaching high school students about how “the media is the message,” we sometimes want students to experience how the format itself can shape emotional response. In other situations, educators need highest-quality images simply in order for the content to be usable, as we have previously demonstrated that the quality of the classroom environment, with the differences in projection screens, light leakage and other factors affect learner response. Also, the diminished quality of sound is a substantial liability for classroom use. Degraded sound and image quality may affect student engagement, which can then result in decreased learning. The Copyright Office will recall that in 2012, social studies teacher Spiro Bolos demonstrated the results of an experiment he conducted with students at New Trier High School in Evanston, Illinois, where he found that the quality of student discussion was improved when students conducted a close analysis of a high-quality clip as compared with a screencast version.

Image quality matters a lot in some cases. Consider the following example. Wes Anderson, the Oscar nominated director of The Grand Budapest Hotel, recently delivered a lecture at the New York Public Library. If he had wanted to include film clips in his lecture from various films that influenced his creative work, the DMCA law would have prevented him from circumventing encryption to create clips to use in his lecture. Libraries offer rich educational programs that serve the American public. Under some circumstances, highest-quality images are important for programs that occur in public libraries. Limitations like this just don’t seem right.

Screen capture does not suffice to meet the full range of educational needs of educators or learners. In particular, screen capture does not offer educators the flexible use of closed captioning or language tracks that are available on DVDs or Blu-Ray discs. Closed captioning is a powerful tool for advancing students’ reading comprehension. Same language subtitling (SLS) is the instructional practice of using captioned videos to encourage reading and increase reading proficiency. Students are able to hear the words being spoken and read the words being spoken at the same time. The use of entertainment media with closed captioning in the K-12 classroom has been shown to dramatically increase students’ reading comprehension.[10] Screen capture and media streaming alternatives do not meet the needs of all educators or learners. Opponents of our exemption claim that screen capture and media streaming provide adequate alternatives to circumvention. But these tools, while valuable, have some important limitations that differentially affect the 50 million students in elementary and secondary schools. Apart from the degraded image quality, many educators do not have the most up-to-date hardware or software or cannot afford the cost of the fee-based screen capture tools. Opponents submitted video clips created using WM Capture, which costs $79 for a single computer, a cost which is unlikely to be absorbed by the school district and would need to be paid for out-of-pocket by modestly-paid classroom educators, whose average starting salary in 2012 was $35,672.[11]

Screencasting simply doesn’t work to capture all forms of digital media. Opponents do not acknowledge what we have previously documented: that screencasting does not always work when using encrypted DVDs, Blu-Ray discs, Netflix, Amazon Prime, Roku, Hulu Plus, or other streaming services.

Media streaming platforms do not replace the need for circumvention in all cases. Streaming platforms, while valuable, should not be considered a substitute for the need for circumvention of a variety of forms of digital media content. Streaming media often have steep fees that limit access. For example, access to Discovery Education streaming media may cost as much as $10,000 or more annually for a school district. Even for paying customers, access is limited as the license contract may limit the ability of students or teachers to use clips to create student-produced media projects. For this reason, librarians and educators have recognized that streaming media may position learners in a “receive only” mode, thus limiting the new forms of active, hands-on, minds-on creative learning that digital literacy requires. Plus, educators in rural and urban communities may not be able to count on high-speed Internet access that streaming media requires. Streaming media offers a limited selection of content and often includes advertisements that can interfere with the learning experience. Screen capture software, while valuable, is not sufficient for the needs of teachers and learners in K-12 education. For all these reasons, teachers and students need to be able to access the content of digital media on DVDs, Blu-Ray discs and other high definition content.

The use of copyrighted materials fordigital and media literacy education is inherently a transformative use. Media literacy educators have long recognized that transformative use is an essential dimension of OUR particular approach to teaching and learning. That is why we developed the Code of Best Practices in Fair Use for Media Literacy Education in 2007.[12] In particular, media literacy education emphasizes the critical analysis of works of entertainment, news, advertising and popular culture as a way to deepen critical thinking, reflect on how values are transmitted through media, and connect home and classroom. The vast majority of audiovisual works in circulation were not intended for classroom use but have much value when used for educational purposes. As a means of learning, students critically analyze entertainment media and then create something new with it, manipulating “quoted matter,” using it “as raw material transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”[13] In our view, opponents to our exemption trivialize and dismiss the significant benefit that such educational use offers to society.

Consider the case of Nuala Cabral, a media arts educator who runs a non-profit program in Philadelphia called FAAN Mail, which offers workshops, presentations and professional development programs on media literacy, social media activism and creating media for social change. In one project, Cabral works with members of the African American community to create “video talk backs” where she encourages people to respond to some of the misogynistic representations in contemporary media. For example, a group of people gather to view and discuss Rick Ross’ music video, “Hold Me Back: Nigeria.” The video includes clips of the video along with comments and dialogue from people who raise questions about the concept of a global ghetto, capitalism and exploitation, and artists’ responsibility and accountability in the hip hop industry. Cabral would like to be able to create FAANMail video where community members analyze and comment on Orange is the New Black: Season 2 on Blu-Ray. Sadly, she is legally unable to bypass encryption to access the clips. This kind of creative educational outreach work is an essential practice of digital and media literacy education that should be protected under fair use. It is important for all citizens to strengthen the ability to critically analyze and create media. For all these reasons, we disagree with opponents who believe our exemption is too broad.

Educators support learners to make lawful, transformative work and discourage infringing uses. They have a deep interest in encouraging students’ lawful behavior. Because they are learning, and learning sometimes involves making mistakes, some students may create works that are infringing, many others will create work that is transformative. One of the ways that students learn best is through hands-on experience, guided by educators who help them develop reasoning and analysis skills. We have found that elementary and secondary students, with appropriate support, can learn to apply the four-factor test to analyze whether a particular use of copyrighted material is likely to be infringing or lawful. In fact, educators are increasingly active in seeking to develop their understanding of copyright and fair use. In Fall 2014, more than 700 educators enrolled in the MOOC (massively online open course) offered on the Canvas Network to develop their own knowledge about how to support student learning of their rights and responsibilities under copyright law in a digital era.[14] Online learning and discussion boards like the Copyright Confusion wiki demonstrate that educators are educating themselves and helping students to understand how to create digital media that is noninfringing.[15] Educators who use digital tools, texts and technologies have created and now use a variety of curriculum materials to help teach about students’ rights and responsibilities under the law. For example, Common Sense Media, a San Francisco-based non-profit organization, has developed a copyright education curriculum now widely used in American schools to help students determine how, when and why they may use copyrighted content as part of their own creative expression. For example, in Grades K- 2, children learn about authorship by putting their name and date on a work they create; in Grade 3, they learn about plagiarism and how to cite sources. In middle school, students learn about how copyright protects their rights and responsibilities as creators and users of the works of others. In high school, students are introduced to the legal and ethical dimensions of copyright. [16] The exemption offered to K-12 teachers in 2012 did not have any demonstrated negative impact on copyright holders and we do not anticipate any to occur when elementary and secondary students — and learners and educators in libraries, museums and non-profits — have the legal right to bypass encryption for fair use purposes. For these reasons, opponents’ concern about the breadth of our exemption is unwarranted.

An exemption for students in elementary and secondary schools or educators and learners in libraries, museums and non-profit organizations does not harm the economic interests of media industries or technology providers. Opponents conclude their argument by presenting a classic legal double bind: they first imply that abuses occurred if students were engaged in circumvention and they then suggest that no exemption is needed if students made use of screen capture. This superficial ploy trivializes the importance of the DMCA 1201 process in supporting the innovative uses of digital media in the context of elementary, secondary and higher education. It’s worth noting that opponents provide no evidence to show that the DMCA 2012 exemption to K-12 teachers has led to any abuse or harm to the industry. For these reasons, an exemption should be provided to allow K-12 students and educators and learners in libraries, museums and non-profit organizations to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual material made available in all formats, including DVDs protected by CSS, Blu-ray discs protected by AACS, and TPM-protected online distribution services.

FOOTNOTES

[1] See for example the research reports published by the Digital Media and Learning Research Hub, established by the John D. and Catherine T. MacArthur Foundation. http://dmlhub.net/research/

[2] Crews, K. (1993). Copyright, Fair Use and the Challenge for Universities. University of Chicago Press.